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Clare & Ors v Bedelis

Clare & Ors v Bedelis

Case [2016] VSC 381 7 July 2016

Restrictive Covenant

Principles of Construction

Breach of Contract

Property Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 02973

RUSSELL MAYNARD CLARE & ORS (according to the Schedule attached)	Plaintiff
v
EVA BEDELIS	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2015
DATE OF JUDGMENT:	7 July 2016
CASE MAY BE CITED AS:	Clare & Ors v Bedelis
MEDIUM NEUTRAL CITATION:	[2016] VSC 381

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PROPERTY LAW – Restrictive covenant – Principles of construction ‑ Not to erect any dwelling house other than one having walls of brick or stone – Not to be more than one storey in height – Determination of preliminary question – Does the building that is being constructed on the defendant’s property breach the covenant – No breach established – Jacobs v Greig [1956] VLR 597; Ferella v Otvosi (2005) 64 NSWLR 101; Westfield Management Limited v Perpetual Trustee Company Limited (2007) 233 CLR 528; Big River Paradise Ltd v Congreve [2008] NZCA 78; Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64; Prowse v Johnston & Ors [2012] VSC 4.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Tweedie SC with Mr B J Murphy	Best Hooper
For the Defendant	Mr P Solomon QC with Mr M Townsend	Bedelis Lawyers

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The Preliminary Question................................................................................................................ 2

Summary of Conclusions................................................................................................................. 2

Affidavits and Evidence................................................................................................................... 2

Background......................................................................................................................................... 4

The Construction of Restrictive Covenants.................................................................................. 8

Submissions – in General............................................................................................................... 11

More than One Storey in Height?................................................................................................. 13

Plaintiffs’ Submissions............................................................................................................... 13
Defendant’s Submissions........................................................................................................... 14
Cases Relied on by the Plaintiffs............................................................................................... 18
The Leichhardt Decision................................................................................................... 18
The Ferella Decision.......................................................................................................... 21

Consideration.............................................................................................................................. 26

Walls of Brick or Stone................................................................................................................... 35

Plaintiff’s Submissions............................................................................................................... 35
Defendant’s Submissions........................................................................................................... 36
Consideration – Walls of Brick.................................................................................................. 37

Conclusion......................................................................................................................................... 47

HIS HONOUR:

Introduction

These reasons for decision address the answer to a preliminary question ordered to be separately determined.

The plaintiffs are the owners of 18 parcels of land in Wheelers Hill, Victoria and claim to have the benefit of a covenant burdening the land owned by the defendant at 8 Yvonne Court, Wheelers Hill, being Lot 46 on plan of subdivision 26647 and the land more particularly described in Certificate of Title Volume 8131 Folio 781, (‘the Land’).

The covenant restricts the owner of the Land from erecting any dwelling house other than one having walls of brick or stone and being not more than one storey in height.

The plaintiffs commenced this proceeding by writ claiming that the defendant has breached the covenant and seek:[1]
[1]The writ was filed on 10 June 2015 and amended on 20 August to remove the 20^th and 21^st plaintiffs.

(a) a permanent injunction restraining the defendant from breaching the covenant;

(b) orders requiring the defendant to demolish an existing house which was allegedly erected in breach of the covenant; and

(c) damages either in addition to or in substitution for an injunction.

The defendant denies any breach of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clare & Ors v Bedelis

Details

AGLC: Clare & Ors v Bedelis [2016] VSC 381
Case: [2016] VSC 381
Decision Date: 7 July 2016

CaseChat Overview and Summary

The matter of Clare & Ors v Bedelis involved a dispute over restrictive covenants on property. The plaintiffs, Clare and others, sought to enforce certain covenants that had been imposed on the defendant's property. The specific issue in question was whether the construction on the defendant's land violated the covenants that restricted the erection of any dwelling house to one with brick or stone walls and limited the height of such buildings to one storey.

The court was required to interpret the restrictive covenants in the context of the construction on the defendant's land. The key issue was determining whether the construction constituted a breach of the covenants. The court considered several precedent cases to assist in its interpretation, including Jacobs v Greig, Ferella v Otvosi, Westfield Management Limited v Perpetual Trustee Company Limited, Big River Paradise Ltd v Congreve, Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council, and Prowse v Johnston & Ors. These cases provided guidance on the principles of construction and enforcement of restrictive covenants.

After considering the relevant precedents and the specific language of the covenants, the court concluded that the construction on the defendant's property did not breach the restrictive covenants. The court found that the covenants were not sufficiently precise to impose the restrictions claimed by the plaintiffs. Consequently, the plaintiffs' application for an injunction to prevent the completion of the construction was dismissed. The court's decision was based on the principle that the burden of enforcing a restrictive covenant lies on the party seeking to enforce it, and in this case, the plaintiffs had not met that burden.

Orders